Jones v. Atlantic Coast Line R. Co.

• Decision Date: 17 November 1910
• Citation: 69 S.E. 427,153 N.C. 419
• Parties: JONES v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

69 S.E. 427

153 N.C. 419

JONES v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

November 17, 1910

Appeal from Superior Court, Cumberland County; W. R. Allen, Judge.

Action by George W. Jones against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Plaintiff moves to dismiss the appeal, and to affirm the judgment. Motion granted.

It is immaterial whether the assignment of error precedes or follows the judge's signature to the case on appeal.

Where the record on appeal consisted of 18 pages, exclusive of the clerk's certificate, and exception 1 appeared on page 9 exception 2 on page 15, exceptions 3 and 4 on page 18, and exceptions 5, 6, and 7, on page 17, and exception 8 on page 18, and there was no assignment of error at the end of the case, either before or after the judge's signature, there is not a compliance with Supreme Court rule 19, subd. 2, 66 S.E. vii, requiring that all exceptions relied on, grouped and numbered, shall be set out immediately after the statement of the case on appeal, and under Supreme Court rule 20, 66 S.E. vii, the appeal must be dismissed, if upon examination of the record proper, as the statute requires, no error appears.

Rose & Rose, for appellant.

H. L Brothers and Sinclair & Dye, for appellee.

CLARK C.J.

The appellee moves to dismiss because the appellant has failed to comply with rule 19(2) of this court (66 S.E. vii). That rule prescribes: "19(2) Exceptions grouped. All the exceptions relied on, grouped, and numbered, shall be set out immediately after the statement of the case on appeal." And rule 20 authorizes a dismissal of the case, if this rule has not been complied with. It is immaterial whether the assignment of errors precedes or follows the judge's signature to the case on appeal. What is required is that the appellant shall go through the case on appeal, and select such exceptions as he intends to rely on, and group them at the end of case on appeal. The assignment of errors may, but most often does not, embrace all the exceptions taken on the trial. The assignments of error are thus something distinct and separate from the exceptions taken on the trial. They embrace all the points, duly taken as exceptions, which the appellant thus notifies the appellee and the appellate court that he intends to rely upon. It thus embraces such exceptions taken during the trial, which were duly noted, and which he intends to rely upon, and also the exceptions to the charge, which are not required to be noted at the time, and in addition, if the appellant thinks proper, the exceptions that the court had no jurisdiction, and that the complaint did not state a cause of action. The object of this rule which was adopted after the fullest consideration by the court, is (1) that the counsel on the other side may be notified exactly what propositions he will be called upon to debate, and may prepare himself accordingly. When, as is often the case, many of the exceptions are dropped, this enables counsel on both sides to better prepare themselves to discuss the real points in controversy. (2) It enables the court to see at a glance, by turning to the assignment of errors what propositions of law are presented, and to grasp the case much more quickly. The rule is a most reasonable one, and the court has repeatedly enforced it and expressed its intention to rigidly adhere to it. Nothing could be more arbitrary than a principle or rule which should be enforced against some litigants and not as to others.

In addition to rule 19(2) above quoted, Revisal 1905, § 591, requires the appellant to "state separately, in articles numbered, the errors alleged." Rule 27 of this court (66 S.E. viii) requires that the exceptions shall be "briefly and clearly stated and numbered." This court in Davis v. Wall, 142 N.C. 450, 55 S.E. 350, allowed a motion to dismiss for failure to comply with the above requirements. And added "the motion is allowed in the expectation that appellants hereafter will conform to these requirements. Sigman v. R. R., 135 N.C. 182, 47 S.E. 420, and cases cited. Ordinarily, hereafter, such motions will be allowed, without discussing the merits of the case, as we have done in this instance."

In Marable v. R. R., 142 N.C. 564, 55 S.E. 358, Walker, J., said: "The defendant moved in this court to dismiss the appeal under rule 20, for failure to comply with requirements of rule 19. A similar motion was made at this term, based upon substantially the same grounds, in Davis v. Wall, 142 N.C. 450, 55 S.E. 350, and we enforced the rules to the extent of dismissing the appeal in that case. We again specially direct the attention of the profession to those rules and their decision, as being very proper for their careful consideration when preparing cases on appeal."

In Lee v. Baird, 146 N.C. 361, 59 S.E. 876, the same motion was made as in this case, and Hoke, J., very carefully and fully affirmed the right of the court to prescribe rules, the necessity of the rules in question, and held, as had been repeatedly held before, that the rules of the court were mandatory and not directory. We can add nothing to what was there so clearly stated. The appeal in that case was dismissed.

In Thompson v. R. R., 147 N.C. 412, 61 S.E. 286, the same rules 19, 19(2), 20, 27, and Rev. 591, were again fully discussed by Hoke, J., and the appeal was dismissed.

In Ullery v. Guthrie, 148 N.C. 418, 62 S.E. 552, the same rules were discussed, and the court said: "This is a reasonable and just rule, which obtains doubtless in all appellate courts, and is the result of experience which has shown the benefit of thus indicating at a glance to opposing counsel, and the court as well, the propositions of law which will be debated. It imposes no burden on the appellant thus to sift out of the numerous exceptions, taken out of abundant caution on the trial, those which he will rely upon, and discuss upon appeal. We can add nothing to what has been said by this court in Lee v. Baird, 146 N.C. 362 . It is indispensable in all courts that there should be some rules of practice, else there will be hopeless disorder and confusion. It is, for the same reason, not so important, what the rules are as that the rules, whatever they may be, shall be impartially applied to all, and that changes shall be prospective, by amendment to the rules, and not retroactive by granting exemption to some, which has been denied to others."

In Smith v. Manufacturing Co., 151 N.C. 261, 65 S.E. 1009, Walker, J., says: "We must insist upon a strict compliance with the rule, which requires an assignment of the errors relied on in this court. It is a most reasonable rule, because the appellant is thereby notified of the specific matters which will be involved in the appeal; it enables counsel to prepare their case with greater ease, eliminating all immaterial questions; and, lastly, but by no means the least of all, it places before the court in condensed form the entire case, so that we can more readily understand the argument of counsel and consider the case more intelligently as the discussion before us progresses. But it is sufficient to say that it is the rule of this court, which was adopted after mature consideration, and is far less drastic or exacting in its requirements than similar provisions in other appellate tribunals, where even an assignment of errors, strictly conforming to our rule, would not be tolerated for a moment. We have more than once held, with some degree of emphasis, that this, as well as the other rules of the court, will be enforced, reasonably, of course, but according to their plain intent and purpose. In this case it seems that the appellant failed to comply with the rule, which requires the errors, which were pointed out by exceptions taken during the course of the trial, to be grouped and numbered, or assigned in an orderly manner. We are therefore not permitted to consider the able and carefully prepared brief of appellant's counsel, or to enter upon a consideration of the case upon its merits. It is our duty though, under the statute, to examine the record. We have done so, and find no error therein. The appellee moved to affirm the judgment, under the rule as construed by this court in Davis v. Wall, 142 N.C. 450 ; Marable v. R. R., 142 N.C. 564 ; Lee v. Baird, 146 N.C. 361 ; Thompson v. R. R., 147 N.C. 412 ; Ullery v. Guthrie, 148 N.C. 417 . As the case is now presented to us, we must allow the motion, and affirm the judgment."

In Pegram v. Hester, 152 N.C. 765, 68 S.E. 8, the same motion was made because "There are no assignment of errors in the record," and the court quoting at length from the opinion of Walker, J., in Smith v. Manufacturing Co., 151 N.C. 261, 65 S.E. 1009, and citing other cases affirmed the judgment on that ground. The same action has been taken per curiam in several other cases, including one other at this term. In the present case, in the printed record, which is somewhat more condensed than the manuscript record, exception 1 appears on page 9, exception 2 on page 15, exceptions 3 and 4 on page 16; exceptions 5, 6, and 7 on page 17, and exception 8...